“Which part of ‘make no law’ don’t you understand?, some people colorfully argue. Well, I understand ‘make no law’ just fine…. The real difficulty is with ‘the freedom of,’” Mr. Volokh writes.

In the Founders’ era, “nearly everyone, as best I can tell, saw ‘freedom of speech’ and ‘freedom of the press’ as providing less than complete constitutional protection for spoken or printed words. And this suggests that the term ‘freedom of’ referred to some understanding that there is a proper scope of such freedom (even if the scope was unsettled in some particulars), rather to unlimited freedom to say or print anything one pleases.”

Volokh notes that there are clear problems with absolute protection for speech. “A threat to kill the President is literally speech. So is ‘your money or your life,’ said to someone in a dark alley…. Attempted fraud is often nothing but speech. The list could go on.

“There are, I recognize, arguments for barring the government from punishing any of this speech.… But if one is to appeal to the wisdom of ‘the Founders,’ one should recognize that the Founders almost certainly did not understand ‘the freedom of speech, or of the press’ as embracing absolute protection for speech and press.”